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Not following instructions will still get you fired, even when you engage in protected activity

published in McAfee & Taft EmployerLINC | March 17, 2015

In Meyers v. Eastern Oklahoma County Technology Center, the Tenth Circuit Court of Appeals upheld judgment for the employer even though the plaintiff had engaged in legally protected activity because she disregarded her supervisor’s instructions.

The facts

EMTDonna Meyers was the adult education coordinator for the EMT program at Eastern Oklahoma County Technology Center. The school lost the tuberculosis testing records for six students, and a part-time instructor, Ms. Gonzales-Palmer, an Air Evac medic, offered to retest the students so they wouldn’t have to pay for another test. Meyers believed Gonzales-Palmer had stolen testing materials from her employer and instructed her not to retest the students. Meyers later found out Gonzales-Palmer had disobeyed her orders and retested the students anyway. Meyers contacted Air Evac and offered to help in their investigation into whether Gonzales-Palmer had stolen testing materials. Meyers later met with Gonzales-Palmer about the incident, and terminated her from her part-time school instructor position.

Ms. Gonzales-Palmer contacted the school superintendent about her termination. The superintendent reinstated Gonzales-Palmer and told Meyers that she had no authority to terminate employees. The superintendent also warned Meyers not to retaliate against Gonzales-Palmer or discuss the testing incident with anyone.

Despite the warning, Meyers met with an Air Evac supervisor about their investigation. The superintendent learned about the contact and warned Meyers that she would be terminated if she continued to discuss the incident or if she retaliated against Gonzales-Palmer. Meyers nevertheless removed Gonzales-Palmer as an instructor for two classes without consulting her supervisor. When the superintendent learned of the removal, he suspended Meyers. The superintendent then learned Meyers had failed to renew the school’s certification as an EMT training site and recommended her termination. Meyers then made a written complaint with the Oklahoma Department of Health about the tuberculosis testing incident. The superintendent then terminated Meyers, and the school board upheld the termination.

Meyers sued, claiming her First Amendment right to free speech had been violated because the superintendent had terminated her in retaliation for her report and communications about the testing incident. As a public employee, unlike private sector employees, Meyers had a protected right to speak out about matters of public interest. Meyers claimed that her discussions with the Oklahoma State Department of Health and also Air Evac about the testing incident were protected speech and she was wrongfully terminated for engaging in the speech.

The district court, and later the Tenth Circuit, agreed that Meyers’ speech was protected under the First Amendment, but also concluded that Meyers was not terminated for it. The Tenth Circuit determined that the superintendent did not know about the Department of Health report when he decided to terminate Meyers. As for Meyers’ communications with Gonzales-Palmer’s employer, Air Evac, the Tenth Circuit found the retaliation claim failed because the superintendent would have terminated Meyers anyway because of her retaliation against Gonzales-Palmer, and for failing to get the testing certificate renewed. The court specifically held that the superintendent had advised Meyers to consult her supervisor before taking any action involving Gonzales-Palmer, so when she removed Gonzales-Palmer as an instructor, she disobeyed direct orders, warranting her own termination.

Conclusion

The lesson is simple: not even legally-protected activity – even constitutionally protected activity – can prevent termination for a lawful reason. This case also illustrates two basic points that often are underestimated: 1) always have a business/job-related reason for termination, and 2) don’t be afraid to make a termination decision when it is warranted. As we say in the business, “If you have a clear shot, take it.”

  • Meyers v. Eastern Oklahoma County Technology Center, (10th Cir., 1/28/15)